Lord Mackay of Ardbrecknish: My Lords, the noble Earl really must not go on about not being entitled to work. If the people concerned are British citizens they will be entitled to work immediately on their return here. That is quite a different category from asylum seekers who are not British citizens.

Earl Russell: My Lords, I am grateful to the Minister. I had temporarily slipped a gear and I thank him for pulling me up.

The fact remains that even if you are entitled to work, not everybody who is so entitled is of an age and has the health which permits them to do so. The Minister will recall one particular case about which we have corresponded at very great length where that was definitely the case. Therefore, in those cases, I should be grateful to know precisely what advice those people will be given. I presume it will be the traditional Irish advice that they should not have started from here in the first place; but I do not know what else they should have done.

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The noble Lord should also look very carefully at the judgment of Lord Justice Neill in the Kihara case in the Court of Appeal which drew attention to the combination of pressures that a number of people in that situation face.

Rather unwisely, I thought, in the context of previous discussions, the Minister told me that he would never agree with me about the habitual residence test. I must ask him the traditional question: what, never? There is an appropriate response; I hope he can give it. The Minister will go on about taxation. I think he is going the wrong way about it, but we shall not agree about that either, and we shall have plenty more opportunities to return to it. So, ready for the next round, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 44:

Page 105, line 27, at end insert--
("( ) A person who is subject to immigration control within the meaning of the Asylum and Immigration Act 1996 is not eligible for housing assistance unless he is of a class prescribed by regulations made by the Secretary of State.").

The noble Lord said: My Lords, in moving Amendment No. 44 I wish to speak also to Amendments Nos. 47, 48 and 49. I believe I have already explained to your Lordships--in the context of moving amendments to Clause 153 of Part VI of the Bill, dealing with those who may or may not be a qualifying person for the purpose of housing allocation--that the Government are concerned to put beyond doubt the question of the lawfulness of excluding certain classes of persons subject to immigration control from entitlement to housing assistance. I remind your Lordships that this concern arises because of the recent Court of Appeal decision which stated that the regulations which we passed at the end of January were unlawful insofar as they deny council tax benefit, housing benefit or income support benefit to asylum seekers whose claim has not been finally determined.

Amendment No. 44 is similar to Government Amendment No. 7--which I moved earlier this evening--which has already been considered under Part VI. Amendment No. 44 will make clear on the face of the Bill that persons subject to immigration control are not eligible for assistance under Part VII, and will put beyond doubt--in primary legislation--that such persons are ineligible unless otherwise prescribed by regulations. Other than clarifying the issue of the lawfulness of any exclusions from eligibility under Part VII, the practical effect of this amendment is, like Amendment No. 7, nil because the classes of person which we intend to exclude from eligibility are unchanged.

We intend that regulations should specify that the following classes of person subject to immigration control are eligible for assistance under Part VII: refugees; persons granted exceptional leave to remain, or having indefinite leave to remain; asylum seekers (and the dependants of asylum seekers) whose asylum

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claim has not been turned down and who either applied for asylum at the port on arrival, or applied for asylum within three months of a declaration by the Home Secretary that their country of origin has undergone an upheaval. As with regulations to prescribe persons subject to immigration control who are qualifying persons for the purpose of Part VI, we intend that regulations prescribing those who are eligible for assistance under Part VII should be made at the outset, on commencement of this Bill. I commend the amendments to the House. I beg to move.

Lord Dubs: My Lords, it is of course confusing and difficult to have so many government amendments at this stage of the Bill. I am bound to say that it has been difficult to examine these amendments in the time available, to test whether they are innocuous or whether they contain a sting. I listened hard to what the Minister said in introducing these four amendments. The difficulty is that as we have two Bills proceeding through Parliament at the same time there is some overlap. I am bound to say that had the Government kept the housing provisions either in the asylum Bill only or in the Housing Bill only, it would have been much easier than having similar groups of people covered in both Bills. That has certainly caused me confusion, but I fear it has also caused the Government confusion, and that makes it worse.

When the Minister talked about the people who would be eligible for assistance he did not mention asylum seekers who claimed asylum within three days of arrival in this country, as was established in a previous amendment. I do not wish to have too suspicious a mind about this, but I wonder whether Amendment No. 48, which seeks to remove subsection (3) of Clause 174, is intended in some way to circumvent that three-day amendment that this House accepted. It certainly could, on one construction, be seen to be doing that. I hope that is not the case because if it were I should have thought that it is not totally above board and is not the right way to take this matter further.

Regrettably, because we are dealing with the issue at Report stage and not in Committee, other than asking for leave of the House to make further interventions, it is much harder to establish the truth of the matter. That is another difficulty in having a raft of government amendments at this late stage of the Bill. I should like some assurance that nothing the Minister has said will, directly or indirectly, affect the amendment passed by this House: that asylum seekers claiming asylum within three days of arrival will have the same entitlements to benefits as those who claim asylum at the port of entry.

Earl Russell: My Lords, the noble Lord has made an extremely important point. I, too, am anxious to hear the assurance for which he asks.

Lord Hylton: My Lords, when the Minister replies will he explain to the House the meaning of the wording in Amendment No. 49, "whether another person". It does not seem plain.

Lord Monkswell: My Lords, the Minister read a list of categories of people who would be eligible.

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He referred again to the concept of an individual applying for asylum at the port of entry. My noble friend Lord Dubs queried whether the Government recognised that there was an amendment at Committee stage.

Perhaps I may put another category to the Minister; he may not have considered it. A rich person comes from a country where he would be subject to persecution. There are special categories or criteria by which people with large amounts of wealth can come to this country without difficulties with immigration control, and so on. The wealthy person comes to this country but loses his wealth after being resident for some time. It may be a bad Stock Exchange investment--stocks can go down as well as up. He becomes destitute in this country with no visible means of support. Would the Government entertain an application for asylum for that person even though the application was not made within three days of arriving at the point of entry?

Lord Mackay of Ardbrecknish: My Lords, as these are my amendments, I can sum up this short debate at Report stage. I do not believe that there is any problem about the procedure of the House. Therefore, I can assure the noble Lord, Lord Dubs.

I shall not pursue the noble Lord, Lord Monkswell, down his hypothetical path. I am always intrigued at the manufacture of hypothetical cases. If a rich asylum seeker comes to this country, his asylum application will be treated in the same way as anyone else's and he will clearly not be eligible for benefit on any specific count even if he applies at the port of entry. So far as I am concerned, he will not be eligible for benefit, although one never knows the view of the Opposition parties on that. I gather that they would not consider him eligible for benefit either.

Noble Lords: Oh!

Lord Mackay of Ardbrecknish: My Lords, he is an asylum seeker. I thought that asylum seekers were more deserving of benefit than anyone else.

Lord Monkswell: My Lords, with the leave of the House, I believe that the Minister has misunderstood my comments. I was talking about someone who was rich and is now destitute. What is the Government's position?

Lord Mackay of Ardbrecknish: My Lords, perhaps the noble Lord would give me a moment or two to answer. A person does not come to this country rich and in the twinkling of an eye suddenly become poor. After a few months of putting money on the wrong horse, or whatever it may be, he then ends up poor. I guess that by that time the asylum application would have been considered. If the person had been granted asylum or exceptional leave to remain and then became poor, he would be eligible for benefit. However, if he had not been granted asylum and became poor, he would be like anyone else not granted asylum: he would not be eligible for benefit. That is a pretty clear answer.

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To return to more serious matters, the noble Lord, Lord Hylton, asked about "whether another person", the words in my amendment. It is simply a re-drafting amendment with no practical change in effect from the provisions drafted in Clause 174 (4). With the assurance that there is nothing underhand or devious intended, I hope that the noble Lord can be comforted.

Amendment No. 48 would remove subsection (3) of Clause 174. The subsection provides that regulations that prescribe classes of persons who are ineligible under Part VII may make reference to housing benefit legislation. While it remains our broad policy aim to align entitlement to assistance under the homelessness legislation with entitlement to housing benefit, we do not intend to make direct reference to social security legislation for the purpose of making regulations under Part VII. That is the position.

As to the three days, nothing takes away from the general principle of aligning the benefit regulations with the asylum provisions which apply at the port of arrival. I have mentioned before that we are considering what we should do about the defeat which I suffered a week ago in your Lordships' House.